Disputes Roundup: Tuna Appeal at WTO Likely; Animal Welfare Groups Petition Obama

16 November 2011

The long-running dispute between the US and Mexico over Washington's ‘dolphin safe' labelling practice for tuna products is likely to see a WTO appeal, after the two parties together asked for an extension of the appeals deadline. Meanwhile, animal welfare and consumer advocacy groups in Washington are urging the US to look into options outside the global trade body for resolving the trade row.

WTO appeals deadline extended to January

At its last meeting on 11 November, the WTO Dispute Settlement Body (DSB) decided to extend the deadline for submitting an appeal on the latest Tuna-Dolphin (DS381) ruling issued in September (see Bridges Weekly, 21 September 2011).

In light of the Appellate Body's substantial workload, the US and Mexico had jointly requested an extension of the normally sixty-day period, which otherwise would have expired on 15 November. In accordance with the agreed extension, an appeal will have to be submitted no later than 20 January.

Requests of this kind have been used frequently throughout 2011, as the WTO's appeal judges struggle to resolve the technicalities of the Airbus/Boeing spat and generally face a large caseload. While most members support this form of collaborative action, Japan has continuously warned that the practice must remain an exception in order to maintain a high level of fairness and efficiency in the dispute settlement system.

The requested extension can be interpreted as a sign that the parties intend to appeal the decision. In almost all instances where members requested a deadline extension, appeals were subsequently filed.

Already in an initial response in September, the United States Trade Representative's (USTR) office said it was carefully examining the possibility of an appeal.

Washington had partially lost its claim in this high-stakes dispute over the US "dolphin safe" label for tuna products when a panel ruled the US practice unnecessarily trade restrictive (for further analysis on the tuna-dolphin case, see Bridges Trade BioRes Review, November 2011).

Animal welfare, consumer advocacy groups push back

The global trade body's September decision has come under heavy fire from animal welfare groups and consumer protection advocates in the US, to the point where some are now pushing Washington to explore options outside the WTO.

"[The decision] puts at risk one of the most successful environmental consumer education programs in history, which has helped to reduce dolphin deaths in tuna nets from an estimated 80,000 to 100,000," six animal welfare groups warned in an open letter to US President Barack Obama and US Vice President Joe Biden on 4 November.

"Failure to reach a timely resolution of this dispute ... threatens the integrity of the US Dolphin Safe label and the rights of US consumers to unbiased information about the safety of dolphins," Earth Island Institute and its co-signatories cautioned in the letter.

WTO appeal is not the only avenue for action in this particular matter, however. Earth Island Institute and its fellow advocacy groups are lobbying for Obama to take the dispute to the presidential level and to address the matter under the North American Free Trade Agreement (NAFTA).

"We urge you to take diplomatic steps with the Government of Mexico to ensure it meets its responsibilities under NAFTA with respect to the US Dolphin Safe tuna label dispute," they said.

The NAFTA dispute between the US and Mexico has been running in parallel to the WTO's proceedings since 2009.

Washington contends that Mexico's decision to pursue the case at the WTO violates a NAFTA clause that allows the US, as the target of a case concerning matters addressed by both WTO and NAFTA rules on the protection of human or animal life or the environment, to choose to have the dispute considered solely under NAFTA procedures (NAFTA Article 2005) (see Bridges Trade BioRes 11 October 2010).

In 2010, the USTR requested that a NAFTA panel be established to rule on this claim. Unlike the WTO dispute, however, the NAFTA disagreement - at this stage - only concerns the appropriate choice of forum and not the substance of the trade spat.

The NAFTA process has stalled since the panel establishment in 2010, however.

Under NAFTA rules, panel composition can be blocked if no panel roster - which provides for a list of panellists that can be chosen from should parties be unable to agree on a panel - is in place. The last roster expired after three years; lately, Mexico has refused to nominate new candidates, thereby effectively blocking the panel composition.

As a result, Washington has been left without any options under NAFTA. In previous situations, the US had made use of the very same procedural loophole to block disputes brought by Mexico.

"The resolution of this case is important in ensuring the integrity of the NAFTA choice-of-forum provisions and to preventing a dangerous precedent being set for future co-operation with the Government of Mexico in trade disputes," Earth Island Institute and its partner signatories stated in their letter.

As NAFTA continues to be blocked on the matter, however, an appeal at the WTO seems much more likely than any decision from the trilateral trade pact. This might also be in the interest of the global trade body, giving it the opportunity to address the matter of whether decisions by regional trade courts can bar a WTO member from making use of the adjudicative options provided at the WTO.

New Appellate Body members to be named at next DSB meeting

In other appeals-related news, the DSB is expected to appoint two new Appellate Body members at its upcoming meeting on 18 November.

Following the receipt of nominations from the US, India, and Pakistan this summer, the selection committee and interested country delegations have been conducting meetings with nominees over the past month. The selection committee shared its decision with member states on 7 November.

The decision now needs to be confirmed by the DSB; the appointment had originally been scheduled for Friday of last week.

ICTSD reporting.

This article is published under
16 November 2011
The US and EU should freeze trade-distorting support for cotton at current historically-low levels, West African exporting countries have argued in a WTO proposal. The proposal was discussed...
16 November 2011
Leaders of the nine countries negotiating the Trans-Pacific Partnership (TPP) Agreement announced a broad outline for the proposed accord at this weekend's gathering of Asia-Pacific leaders. Canada,...